Horizon parking court claim

winner1111

Oh, I need to append the Britannia Parking v Crosby & Anor to the WS too. Should I put this as any of the numbered para's?

winner1111

Here is an edit but I still think there are likely a few things to amend. Please do reply ASAP so I can have this perfected by the afternoon of the 29th (Sunday). Thank you!

I, xxxx, of xxxxx, am the Defendant in this matter, and will say as follows.

In this Witness statement, the facts and matters stated are true and within my own knowledge, except where indicated otherwise.

1. On 6th September 2017, I visited Stratford-upon-Avon with friends. As per previous visits, the vehicle that I was the keeper of, registration No. xxxx, was parked at the ……….. ………. car park. The car was parked on the material date as had been done many times previously. We typically spent at least a half day parked there on each occasion and have not once received a PCN before this one. In fact, I was not aware that the car park was being managed.

2.  There’s no distinctive signage for drivers to see upon entry to the car park indicating a parking time limit or restriction as Exhibit A (this is video footage), Exhibit B and Exhibit C. 

3. Upon initial receipt of a parking charge notice from the Claimant via mail, I assumed that the ticket issuer had no legitimacy of issuing parking charge notices. The parking charge notice was therefore ignored.

4. Horizon Parking Limited are not the lawful occupier of the land. I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no rights to bring action regarding this claim.

5. It is my position that the Claimant has no standing, or cause of action, to litigate in this matter.

6. The Claimant is attempting to claim £172.27, a figure far higher that the initial £80 demanded.

7. I invite the court to refer to Exhibit D, a hearing transcript of Britannia Parking v Crosby & Anor, detailing Southampton County Court Hearing Centre striking out parking charge cases that include added £60 (or more), described as 'debt collection' or 'contractual' or admin, business or indemnity costs.

7. I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14.

I believe that the facts stated in this Witness Statement are true.

winner1111

Summary Assessment of Costs - one claim xxxxxxxx

Ordinary Costs:

One half day loss of earnings for attending hearing - £50

Further costs for Claimant's unreasonable behaviour, pursuant to Civil Procedure Rule 27.14(2)(g):

a. Reading Letter before Claim and N1 claim documents for claim - 2 hours

Researching how to respond to county court claims - 3 hours

Writing defence and submitting it and Directions questionnaire - 3 hours

Preparing Defendant's own witness statement and evidence - 2 hours

b. Stationery, copying, printing and postage - £15.00

£255 TOTAL COSTS CLAIMED

winner1111

Updated version. Comments most appreciated. I made an error and stated I need to complete this by 29th (sunday) but of course today is Saturday!

I will remove the red text and send the video clip, other photos will be attached as normal.

.........................................................................................................................................................................

In the County Court at Birmingham

Claim No. xxxxx

Between

HORIZON PARKING LIMITED (Claimant)

and

(Defendant)

_______________________________________________________________________________________________

Witness Statement

_______________________________________________________________________________________________

I, xxxx, of xxxx, am the Defendant in this matter, and will say as follows.

In this Witness statement, the facts and matters stated are true and within my own knowledge, except where indicated otherwise.

1. On 6th September 2017, I visited Stratford-upon-Avon with friends. As per previous visits, the vehicle that I was the keeper of, registration No. xxxx, was parked at the ……….. ………. car park. The car was parked on the material date as had been done many times previously. We typically spent at least a half day parked there on each occasion and have not once received a PCN before this one. In fact, I was not aware that the car park was being managed.

2.  There’s no distinctive signage for drivers to see upon entry to the car park indicating a parking time limit or restriction as Exhibit A (this is video footage), Exhibit B and Exhibit C. 

3. There’s no distinctive signage for drivers to see upon parking their cars indicating a parking time limit or restriction as Exhibit D and Exhibit E. Signs are sporadic and too high up to be read easily, being at least 7 feet in height.

4. On the Maybird Shopping Centre’s website it states “Genuine customers who remain on the site in excess of four hours are asked to retain their receipts, the receipts need to be within the time of the Contractual Parking Charge and of a reasonable value.” as Exhibit F. This is unreasonable since I typically do not retain receipts months or even years following a purchase. I also browse a lot in the various stores and don’t always purchase-this does not mean I am not a genuine customer.

5. Upon initial receipt of a parking charge notice from the Claimant via mail, I assumed that the ticket issuer had no legitimacy of issuing parking charge notices. The parking charge notice was therefore ignored.

6. Horizon Parking Limited are not the lawful occupier of the land. I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no rights to bring action regarding this claim.

7. It is my position that the Claimant has no standing, or cause of action, to litigate in this matter.

8. The Claimant is attempting to claim £172.27, a figure far higher that the initial £80 demanded.

9. I invite the court to refer to Exhibit D, a hearing transcript of Britannia Parking v Crosby & Anor, detailing Southampton County Court Hearing Centre striking out parking charge cases that include added £60 (or more), described as 'debt collection' or 'contractual' or admin, business or indemnity costs.

10. I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14.

I believe that the facts stated in this Witness Statement are true.

Le_Kirk

If the claimant has added spurious amounts claimed as contractual costs/admin/debt control etc. then you can add the whole Abuse of Process argument.  See the following link to a Witness Statement written by Coupon-mad; although it concerns a disabled driver case, if you take that out, the rest of it can be used and anyway it will give you a guide as to style and format.
https://forums.moneysavingexpert.com/discussion/comment/76881914#Comment_76881914

winner1111

Exhibit B

Exhibit C

Exhibit D

Exhibit E
Exhibit F

Exhibit G (currently the second Exhibit D in the WS which I will amend to G) is the Brittania vs Crosby 6 page transcript document which I will attach.

Please do give comments. 

winner1111

Following Le_Kirk's advice, please see new WS below:

In the County Court at Birmingham

Claim No. xxxxx

Between

HORIZON PARKING LIMITED (Claimant)

and

(Defendant)

_______________________________________________________________________________________________

Witness Statement

_______________________________________________________________________________________________

1. I, xxxx, of xx xxxxxx xxxxx, am the Defendant in this matter, and will say as follows.

2. I deny that the Claimant is entitled to relief in the sum claimed, or at all and my defence is repeated.

3. The Particulars of Claim are incoherent and provided insufficient detail for me to be able to ascertain the nature of the case as pleaded. Although the cause of action appears to be a breach of contract, the Claimant has: 

(i) failed to serve a Letter before Claim with a copy of the sign (the contract) as per the Protocol for Debt claims;

(ii) failed in their Particulars, to provide sufficient detail regarding in what manner the alleged contract was breached;

(iii) failed to state in what capacity the Claimant (a non-landowner) is entitled to recover any part of the sum;

(iv) included a false 'contractual charge' sum of £70, which the Claimants and their legal advisors (both) already know - from recent parking charge claims that have been struck out and which they failed to appeal - is an abuse of process.

Unreasonable behaviour and risk of discontinuance - my Summary Costs Assessment is attached

4.  For the reasons set out in 3. above, and given the facts in my defence and witness statement below, it is my position that the test has been met in Dammerman v Lanyon Bowdler LLP [2017] EXCA Civ 269 (12 April 2017), the Court of Appeal authority and guidance on how the courts should approach applications for costs under CPR 27.14 (2)(g).   The CoA in Dammerman concluded that the meaning of "unreasonable" cannot be different when applied to litigants-in-person in small claims cases.  The test is whether the conduct "permits of a reasonable explanation" which cannot be the case here.

5. In view of the facts of this case, the Claimant’s cavalier attitude and their failure to properly consider their legal position thus far, I believe there is a likelihood that they will now issue a Notice of Discontinuance ('NoD').  However, this means that I must raise the matter of my costs, as fairly assessed to the best of my ability at this stage (see my Summary Costs Assessment appended to this statement, which does not exceed the CPR ceiling of two thirds of the costs that may have applied if I had had the benefit of legal representation).   

6. I respectfully ask that the Judge grants my costs anyway, in the event of a NoD, and uses the court's discretion to dispense with any formal application in this case because the court has a wide discretion on the issue of costs where a party has crossed the line into "unreasonable behaviour" in pre and/or post-action conduct in the small claims track. 

Background - the facts

7. On 6th September 2017, I visited Stratford-upon-Avon with friends in my car-I was not the driver as I do not have a driver’s license. As per previous visits, the vehicle that I was the keeper of, registration No. BN15 FSL, was parked at the Maybird Shopping Centre car park. The car was parked on the material date as had been done many times previously. We typically spent at least a half day parked there on each occasion and have not once received a PCN before this one. 

I did not know it had apparently changed to a restricted stay car park and subsequently I have discovered that the Claimant had introduced a 'maximum stay 4 hours' policy, yet there was no entrance sign alerting drivers to this, when in or out of the car (see video footage - Exhibit A, and Google Street View images from 2019 - Exhibits B and C).

8. There’s no distinctive signage for drivers to see upon parking their cars indicating a parking time limit or restriction (see Google Street View images from 2019 - Exhibits D and E). Signs are also sporadic and too high up to be read easily, being at least 7 feet in height.

9. According to the 'BPA Approved Operator Scheme Code of Practice Control and enforcement of parking on private land and unregulated public car parks Version 4 - February 2014', under 'Operational Requirements' it is stated that clear signage, both upon entrance and within the car park itself, should clearly set out conditions of use - and these conditions are not adhered to in this car park (see Exhibit G, para's 18.1 and 18.2).

10. Upon initial receipt of a parking charge notice from the Claimant via mail, I assumed that the ticket issuer had no legitimacy of issuing parking charge notices. The parking charge notice was therefore ignored.

11. Horizon Parking Limited are not the lawful occupier of the land. I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no rights to bring action regarding this claim.

12. On the Maybird Shopping Centre’s website it states “Genuine customers who remain on the site in excess of four hours are asked to retain their receipts, the receipts need to be within the time of the Contractual Parking Charge and of a reasonable value.” as Exhibit F. This is unreasonable since I typically do not retain receipts months or even years following a purchase. I also browse a lot in the various stores and/or may not find what I am searching for and don’t always purchase-this does not mean I am not a genuine customer.

13. Breach of the UTCCRs (now part of the CRA 2015) and false added costs - an abuse of process.  The UTCCRs were repealed by the Consumer Rights Act 2015 ('the CRA') with effect from 1 October 2015. The CRA applies to terms in contracts entered into from that date (with the UTCCRs continuing to apply to terms in consumer contracts entered into before then - e.g. this one).   Whilst in ParkingEye Ltd v Beavis [2015] UKSC67, it was held that the £85 charge in that case - involving a non-disabled driver and very prominent signage - did not breach the UTCCRs due to the facts unique to that Chelmsford location, the relevant regulations and test of fairness must still be considered in every case.

14.  Whilst the fairness of the charge was not raised in my defence, this is not an issue because s71(2) of the CRA provides for a duty upon the court to consider the fairness of all consumer terms and the fairness of consumer notices (i.e. the sparse car park signs with tiny font), whether a consumer raises the issue, or not at all. The CRA is in similar terms to the UTCCRs, with the same fairness test and a ‘grey list’ (repeated in Schedule 2, Part 1 of the new Act) and the added £70 is a disingenuous attempt at double recovery and certainly disallowed by the applicable consumer legislation (now and in 2014) with reference to paras 6, 10, 14 and 18 of the grey list of terms that are likely to be unfair.

15. It is my position that the Claimant has no standing, or cause of action, to litigate in this matter.

16. The Claimant is attempting to claim £172.27, a figure far higher that the initial £80 demanded. It  also includes the unconscionable sum of £22.27 for ‘statutory interest’.

17. I invite the court to refer to Exhibit H, a hearing transcript of Britannia Parking v Crosby & Anor, detailing Southampton County Court Hearing Centre striking out parking charge cases that include added £60 (or more), described as 'debt collection' or 'contractual' or ‘admin’, ‘business’ or ‘indemnity’ costs.

18. I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14.

I believe that the facts stated in this Witness Statement are true.

winner1111

This is Exhibit G

KeithP

winner1111, why have you bothered to obliterate the Claim Number from most of your posts but clearly displayed in in your post Today at 9:22AM?

Coupon-mad

In the Beavis case (and in the Darlington thread case you copied the WS from which was about a 2014 PCN), the consumer regs that applied were the UTCCRs.  But they were incorporated into the CRA 2015 in Oct 2015.

Why have you copied this, given your PCN was in 2017? 
Clearly in your case, you'd just say '2017' and 'breach of the CRA 2015':

 '(now and in 2014)'

13. Breach of the UTCCRs (now part of the CRA 2015) and false added costs - an abuse of process.  The UTCCRs were repealed by the Consumer Rights Act 2015 ('the CRA') with effect from 1 October 2015. The CRA applies to terms in contracts entered into from that date (with the UTCCRs continuing to apply to terms in consumer contracts entered into before then - e.g. this one).   

For the same reason re dates this is the wrong CoP for you to quote!   The  2014 version 5 was not the right one in 2017 and you need to Google & find the right version (the BPA have the CoPs on their website):

According to the 'BPA Approved Operator Scheme Code of Practice Control and enforcement of parking on private land and unregulated public car parks Version 4 - February 2014', under 'Operational Requirements' it is stated that clear signage, both upon entrance and within the car park itself, should clearly set out conditions of use - and these conditions are not adhered to in this car park (see Exhibit G, para's 18.1 and 18.2).

included a false 'contractual charge' sum of £70,

Gladstones have listed to add £70 not £60?

Why does your defence say precisely NOTHING about the POFA even though you weren't driving, and can't drive, and you were told by a poster here (I just read it!) months ago on this very thread, that Horizon didn't use the POFA 2012 words on their NTK and...if so...they can't hold you liable as registered keeper.

Your WS misses your silver bullet?!  
You can't just copy the Darlington one including the wrong consumer regs an stuff about '2014' and miss all the advice you've had on this thread so far and forget your winning point - non POFA NTK (we assume, but you didn't show it to us). If you haven't got the NTK because you binned it and haven't had their evidence pack yet you simply say the NTK was not POFA compliant, here:

10. Upon initial receipt of a parking charge notice from the Claimant via mail, I assumed that the ticket issuer had no legitimacy of issuing parking charge notices. The parking charge notice was therefore ignored, not least because I have no driving licence, did not park the car, was not bound by any contractual term as a passenger and Horizon did not appear to me to have complied with the mandatory requirements in para 9 of Schedule 4 of the Protection of Freedoms Act 2012, including but not limited to the prescribed words in 9(2)f.  If a parking firm chooses not to use the POFA wording (a few AOS member firms still do not) whilst the NTK is not 'void' it is very limited, insofar as the Claimant is restricted to only pursuing an evidenced driver and cannot revert to the keeper under any rule of law (and not the law of agency as some parking firms try and fail to do - there is no possibility of an agent/principal relationship that day between the driver and myself).  A registered keeper is never liable or bound by a ''non-POFA'' (driver liability only) Notice to Keeper and this has been tested on appeal before - see Excel Parking Services v Smith, heard at Manchester Court on Appeal (Exhibit x - transcript).

Put these in evidence:

- the POFA with paras 4(5) about the maximum to be recovered, and para 9 highlighted
- Henry Grenslade's words UNDERSTANDING KEEPER LIABILITY from the POPLA Annual Report 2015
- Excel v Smith as mentioned above, from the Parking Prankster's case law pages.